New Zealand's New Three Strikes Policy Avoids Being Called A Three Strikes Policy By Only Triggering It Later

from the sneaky,-sneaky dept

For a few years now, we've covered the fight in New Zealand about implementing a three strikes policy. The latest version includes a special "copyright tribunal" to review the various cases... and also a bit of a sneaky way to pretend it's not really a three strikes proposal. That's because three strikes will only kick in at a later date, if it's determined that warning letters alone didn't decrease file sharing. Of course, that seems unlikely, so it will likely still be a three strikes policy, but this way they can pretend it's not really about three strikes. Sneaky. Also, it's worth pointing out that the law appears to still hold account holders liable for any actions done on their local network, which seems pretty ridiculous.

The effect of the infringement is now the offender goes to court. They can face a fine of up to NZ$15,000 (about US$10,000) but they can't have their internet cut off.

... unless ...

Its possible for the Minister to deem its serious enough to have them cut off. Note that for a Cabinet Minister to get directly involved in a copyright dispute means it must be a doozey of one.

If the Minister decides they should be cut off (for a maximum of 6 months) it goes back to Court. The Court then decides if cutting the person off is justified, if its disproportionate then nothing happens.

So on the surface its not as bad as first proposed. But I'm still pretty concerned about the lack of due process in the initial warning notices. It seems the rights holder doesn't have to prove anything until they get to court, but I guess that's no different to today really.

So all in all its relatively weak which is good. Although they have left the door open to introduce the disconnect as a penalty at a later stage, I cant see it being anything other than something the Court could order, so at least preserves a semblance of due process.

On a slightly positive note the committee considering the Bill agreed that any disconnection would do nothing to stop illegal activity. It's simply a punitive action and its only benefit would be to get people to think twice before downloading.

As an aside it is rumoured the last minute removal of the disconnect from the bill was an attempt to keep US officials happy for as long as possible. (trade negotiations)

Some here are thinking the intention was to leave that in there until after the visit by Hillary Clinton (today), which is rumoured to include a discussion on better cooperation in protecting IP internationally. Perhaps another example of the US using its economic muscle to influence other countries domestic policy... conspiracy theory... hmmm... you be the judge :)

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OK I recant some of what I said.

The proposal is simply that the Court cant suspend an account yet. But at some point in the future the Minister may grant the courts this power without having to go back through the law making machine. Once granted this power would apply to every application to the court, not on a case by case basis.

Also after your third strike you go to Court (or the Tribunal). Infringement notices are considered proof of offending, despite there not having to be any proof you offended for one to be issued. That's bad.

What's good is you can challenge an offence notice. This may not change anything other than your objection is considered by the Tribunal (or Court). If you didnt object when you got it though that may count against you. Regardless its a reversal of the burden of proof which I think is crap. Even if you object its still prima facie offending if the rights holder says it is so.

What is also good is the notices expire relatively quickly (4-5 weeks) so its not like you'll have this over your head for years.

What could be good is that you need to infringe three times on the same infringement for it to get ugly. What an infringement is isnt clear. Likely the courts will rule its an infringement against a single rights holder of any of their works, but they could rule its on a single work. I need to read that bit in more detail to know for sure. This technicality will likely be a big focus.

Curious, have the authorities established a formal basis for measuring whether piracy has 'decreased' or not? Or the intervals in which they will revisit the issue, should they decide not to implement 3-stirkes within the first 'evaluation' (for lack of a better word).

Perhaps we can find a way to call stealing something else? Maybe if the stealing kicked in on a later date and if a tribunal voted on the execution of the robbery we can call it a delayed five finger discount.

This sounds very similar to the UK's Digital Economy Act. Letters first, possibility of disconnection later if piracy isn't reduced.

I've always wondered what a copyright infringing file is. For example - I download a Beatles MP3 - one file - one strike.

But what if I download a RAR of a Beatles Album instead? Still only one file but decompresses into an album's worth of illegal MP3s. Would that still just be one strike?

If so, you have the bizarre situation where pirates will be going after the many gig multi-album zip files instead of a single track. In other words, why waste a strike on a single track, when downloading an entire album gets the same penalty? Three strikes will ultimately encourage people to infringe more.

Someone could be cut off for individually downloading three tracks from an album, whereas those that download the full album to begin with will still be on their first strike.

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You're thinking too small. Why download an album when you can download all an artist's albums at once? Still just one strike. How big can it go? Could someone zip up every album from a particular label? Would it be possible to download say six torrents and get everything from the last 60 years? One for the 50s, one for the 60s, etc?

If it's not now, perhaps it will be one day soon, at least in countries with reasonable internet access (ie not places like Ghana and the United States). I hope by the time it would be possible to download a package of "all the movies" foolish laws like this will be gone.

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From what I can see the only proof required is an unchallenged accusation.

So rights holder just has to accuse someone (or technically accuse an IP address) and you get a letter. You can challenge it and if the rights holder doesn't reassert their claim its assumed you are innocent of that strike. But if they disagree with you its presumed you are guilty... although the fact you challenged it and the grounds you challenged it on would become a question of fact for a court to decide (ie, you are still 'guilty' of that strike, but you may get off in a court case if the rights holder can't prove you infringed).

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Each infringement seems to relate to "a work" which means sharing an album of 20 songs would technically be 20 infringements.

You would have to share a substantial part of each song for it to count though.

But here's the deliberate loophole... you cannot get a second strike until you have been notified of your first strike. You can't get a second strike until after you receive the first letter. So you can share 100 songs a day for a month and that will be 3000 infringements but only one strike.

Interestingly I could read the proposed law to say that to get a second strike you have to share the same song that you got warned about the first time, it doesnt seem to say the strikes relate to general offending, just offending against that particular work...